Return to Sender: Responses to Professor Carrington et Al. regarding Four Proposals for a Judiciary Act of 2009

Article excerpt

INTRODUCTION

"Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence." (1)

At the conclusion of the American Revolution in 1783, the average human lifespan was about thirty-five years. (2) The Framers, dissatisfied with the Articles of Confederation, convened the Constitutional Convention in Philadelphia, Pennsylvania, on May 25, 1787. Article III of the resulting U.S. Constitution provided judges of the "supreme and inferior Courts" with presumptive life tenure. (3) Fast-forward more than two centuries. The average human lifespan in the United States is now over seventy-seven years. (4) Due in part to the increase in longevity, the average term of years a Supreme Court Justice serves is steadily rising. On average, Supreme Court Justices now serve just over twenty-six years on the bench. (5) Proponents of judicial reform contend that this increase in tenure has caused appointments to the bench to become irregular and rare. (6) For example, President Nixon made four appointments to the Court in five years, whereas President Carter made none. (7) Similarly, there were seven appointments to the Court between 1981 and 1994 but none between 1995 and 2004. (8) Reformists contend that this new judicial reality is antidemocratic and must be thwarted. (9) Reformists also argue that the current system should be changed due to what they presume to be the following negative consequences of expanded tenure: (1) increased likelihood of superannuated judges at all levels of the federal judiciary, (2) decreased accountability, (3) increased politicization of appointments, and (4) the new tendency to appoint young nominees to the Supreme Court. (10)

To be sure, these arguments for judicial reform are not without merit. Each points to imperfections in the current system. When viewed in the proper context, however, the so-called negative consequences of expanded tenure--and, perforce, the current system--amount to little more than false alarms. (11) No system is perfect, and there is little evidence to suggest that any reform proposal will improve the current one. Indeed, any substantive changes in the appointment process or operations of the Supreme Court may introduce their own negative consequences. (12) As such, reform proposals should ultimately be rejected. Notwithstanding tangible changes to the world, the preeminent concern for maintaining an independent judiciary is as pressing today as it was when the Framers first penned Article III. (13)

Preeminent scholar and Duke University Law Professor Paul D. Carrington contends otherwise. In a recent letter signed by thirty-three members of the legal community and addressed to Vice President Joseph Biden, Attorney General Eric Holder, and certain members of the congressional judiciary committees, Carrington and his cosigners propose four reforms to the Supreme Court. (14) These proposals are styled as statutory texts, "in hopes they would not be treated as 'mere political or scholarly utterances.'" (15) Much more than spontaneous or reflexive responses, the proposals are grounded in several years of research and academic debate concerning the negative consequences of the current system. (16) This diligent research likely accounts for the statutory structure of the proposals, which, according to Professor Carrington, "seemed better 'than writing another law review article.'" (17)

This Article responds to the reform proposals. Specifically, this Article addresses the physiological, institutional, and political arguments that serve as the foundations for these proposals. By demonstrating that the underlying assumptions and arguments that inform the proposals are unsound, the goal is to show that the proposals themselves are at best unnecessary and at worst detrimental to our balanced and divided system of government. Upon doing so, this Article then confronts each proposal in seriatim, highlighting weaknesses as well as the likely detrimental consequences of their implementation. …